Young, Simon N. M.

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Political System Transformation inHong KongSimon N. M. Young 2021-04-13T15:02:34China’s National People’s Congress (NPC) and Standing Committee of the NPC(NPCSC) decided in March 2021 to transform Hong Kong’s political system. Withina couple of months, the Hong Kong government will amend local laws to enableelections for a reconfigured Election Committee (EC) and Legislative Council(LegCo) to be held, respectively, in September and December 2021, ahead of theChief Executive (CE) election in March 2022.1)See Improving Electoral System(Consolidated Amendments) Bill 2021, gazetted on 13 April 2021.Reforming Hong Kong’s electoral systemThe CE is Hong Kong’s political leader, accountable to both the central governmentand the Hong Kong Special Administrative Region (HKSAR). The CE is nominatedby EC members, elected by the EC, and appointed by Beijing. The EC was firstestablished in 1998 with 800 members divided equally across four sectors.2)SimonNM Young and Richard Cullen, Electing Hong Kong’s Chief Executive (HKU Press,2010) ch 2. In 2012, it was expanded to 1,200 members. EC members are electedby almost 250,000 voters, most of them individuals, some corporate. To run forCE a nomination by one-eighth of the EC members is needed, and the successfulcandidate needs more than 50 per cent support. The CE is not allowed to be amember of a political party. The new reforms will increase the size of the EC byanother 300 members, add a new sector for Hong Kong members of national bodies,abolish individual voting, and give EC members the power to nominate LegComembers.3)See Annex I Method for the Selection of the Chief Executive of theHong Kong Special Administrative Region, as amended at the 26th meeting of theStanding Committee of the 13th NPC on 30 March 2021.LegCo members were mostly appointed up until 1985, when elections by functionalconstituencies (FCs) and an electoral college were introduced. The FCs are specialinterest constituencies based on economic sector, profession or other interest; bothindividual and corporate voting is used to return FC members.4)See Christine Lohand Civic Exchange (eds), Functional Constituencies: A Unique Feature of the HongKong Legislative Council (HKU Press, 2006). Direct elections for some memberswere only introduced in 1991. After the resumption of Chinese sovereignty in July1997, the EC, FCs and geographical constituencies (GCs) were used to returnLegCo members up until 2004, when an equal number of legislators were electedby FCs and GCs only. LegCo had 60 members in 1997 but was expanded to 70members in 2012. The new reforms will expand the size further to 90 members,remove some individual voting from the FCs, bring back the EC elected members in- 1 -a significant way, shrink the number of GC members from 35 to 20, and redraw theGCs incorporating a new method of first-past-the-post voting.5)See Annex II Methodfor the Formation of the Legislative Council of the Hong Kong Special AdministrativeRegion and Its Voting Procedures, amended at the 26th meeting of the StandingCommittee of the 13th NPC on 30 March 2021.Hong Kong also has 18 District Councils (DCs) with elected members. The DCshave been used to return members to both the EC and LegCo. However, when pro-democracy candidates won the vast majority of DC seats in the 2019 elections,giving them control over all but one of the 18 DCs, this troubled the Hong Kong andcentral governments. The new reforms will remove the DCs from the mechanismsused to return EC and LegCo members, on the ground that Article 97 of the BasicLaw requires them not to be “organs of political power”. The so-called five FC super-seats, with candidates drawn from elected DC members, are also abolished. Thesuper-seats were introduced in 2012 to give everyone else a FC vote who did notalready have one in the traditional FCs. With the new reforms, there will be somevoters with three votes, more with two votes, and the vast majority with only one votein LegCo elections.Are the new reforms justified? In examining this question, I consider the aims of thereforms, their implications, and whether they are necessary and reasonable. Overall,I have doubts whether all the reforms are necessary and proportionate to achievingtheir intended aims.Reform aimsThe reforms serve three main political ends: (1) ensuring only patriots serve asthe CE and as LegCo and EC members; (2) promoting rational and constructivedebate in LegCo; and (3) laying the foundation for a speedier realisation of universalsuffrage of both the CE and LegCo members. In my view, all of these ends arelegitimate and of pressing concern. Deng Xiaoping wrote that a patriot need notagree with China’s socialist system but must “love the motherland and HongKong”.6)Deng Xiaoping, “One Country, Two Systems”, 22-23 June 1984, reprintedin China Daily, 19 February 2004. There is an analogy to the convention of loyalopposition in parliamentary democracies, i.e. the opposition can be critical of thegovernment as adversaries, rather than enemies, while sharing the same respect forcountry and constitution.7)Michael Ignatieff, Fire and Ashes: Success and Failure inPolitics (Harvard UP, 2013) 101-2.As for the second end, it is well known LegCo has not been operating smoothlyor effectively in recent years. For example, in its first four years of operationafter 1997, it passed 251 bills; in the most recent four years from 2016, only81 bills were passed.8)LegCo Secretariat, “Legislative Council in figures (as at2002.08.27)”, “Legislative Council in figures (as at 2021.03.05)”. As Webber notes,when “government and opposition are carried on by disagreement, neither willbe facilitated in fulfilling its responsibilities: the government will not get its Bills or- 2 -anywhere near all of them, and the opposition will not make known its criticism orpresent itself to the public as a responsible alternative”.9)Grégoire Webber, “LoyalOpposition and the Political Constitution” (2017) 37 OJLS 357, 372.As for the aim of universal suffrage, we are reaching the midpoint of the 50-yearjourney promised in the Sino-British Joint Declaration, yet nowhere near reaching theuniversal suffrage aims promised in the Basic Law. The 2015 veto of a CE universalsuffrage proposal meant there needed to be a shift in the LegCo composition if therewas to be another chance at reform.Process of reformThough the ends are good, what about the means? First, one must considerthe means by which reform has come about. In 2004, the NPCSC decided thatany political reform must follow a five-step procedure which involved a tripartiteconsensus of the CE, NPCSC and two-thirds of all LegCo members and, in practice,wide consultation of Hong Kong people.10)Interpretation by the Standing Committeeof the National People’s Congress Regarding Annex I (7) and Annex II (III) to theBasic Law of the Hong Kong Special Administrative Region of the People’s Republicof China, adopted at the 8th Meeting of the Standing Committee of the 10th NPCon 6 April 2004. Out of expedience, this procedure has now been jettisoned by theNPC and NPCSC and only a partial consultation was conducted. There was noconsultation document, no proposals for comment, no website, no public forums,and only 20 days between the NPC and NPCSC decisions. Compare this to theseven months of public consultation conducted in 2014 and 2015 on CE and LegCoelections reform.11)Simon NM Young, “Rethinking the Process of Political Reform inHong Kong” (2015) 45 HKLJ 381, 384.In my view, the “consultation” fell short of the requirements of Article 25(a) of theInternational Covenant on Civil and Political Rights (ICCPR) guaranteeing the rightand opportunity to take part in the conduct of public affairs, directly or through freelychosen representatives. ICCPR standards remain a matter of state interest as Chinacontinues to report periodically to the United Nations (UN) Human Rights Committeeon the continued application of the ICCPR in Hong Kong. With the safeguard of thetripartite consensus gone, any election laws now made can be changed again withlittle notice or consultation. Such precarity would seem to be inconsistent with theoriginal intention of those who drafted annexes one and two of the Basic Law.New vetting committeeThe main vehicle for vetting patriotism is a new Candidate Eligibility ReviewCommittee whose membership will consist of several minister-level principal officialsand possible others. This vetting committee will assess candidacy qualifications,including whether the person will uphold the Basic Law and swear allegiance tothe HKSAR of the People’s Republic of China, taking into account the findings andopinion of the new national security committee, who will receive input from the new- 3 -national security police. Surprisingly, a person who is refused candidacy on nationalsecurity grounds will not be told the reasons or be able to challenge the refusal incourt.In my view, this is likely a violation of the ICCPR’s right to be elected withoutunreasonable restrictions. In Leonid Sinitsin v Belarus, the individual’s nominationfor the presidential election was ruled invalid by the election commission becausehe failed to submit enough signatures in support.12)Leonid Sinitsin v Belarus(1047/2002), UN Doc CCPR/C/88/D/1047/2002 (16 January 2007). The courtsrefused to hear his challenge on jurisdictional grounds. The UN Human RightsCommittee found no effective remedies were available to the individual to challengethe ruling before an independent and impartial body, resulting in a violation of hisrights under article 25(b) of the ICCPR, read in conjunction with article 2 (right to aneffective remedy).13)ibid [7]. To comply with these requirements, local legislationshould include an independent and impartial mechanism to review decisions of thevetting committee, with sufficient safeguards to protect sensitive information.EC and LegCo reconfiguredThe reforms change significantly the election methods of the EC and LegCo. Thesereforms are intended to further the aims of having patriots administer Hong Kong andhaving more balanced participation. The EC membership is increased from 1,200 to1,500, and many of the new members, all of whom must be Hong Kong permanentresidents, will come from national bodies and organisations. As we reach the mid-point of the 50 years transition period, there is merit in having more EC memberswho are knowledgeable and interested in matters of national interest. It reflects whatI have described as adopting an external perspective of the Basic Law, one that seesHong Kong’s model and people playing a distinct role on the national level.14)SimonYoung, “How Hong Kong’s Basic Law can serve the interests of all China”, SouthChina Morning Post, 27 June 2017.Though the national focus is understandable, what is less clear is the need todisenfranchise so many individual EC voters. In the 2016 EC elections, therewere 230,073 individual voters in 23 subsectors. Most of those will now lose theirvote.15)See Changhao Wei & Taige Hu, “Legislation Analysis: NPC StandingCommittee Approves Overhaul of Hong Kong’s Electoral System”, NPC Observer,31 March 2021. EC elections already have the lowest turnout rates of all elections;cutting off individual voters will further alienate the EC from the general electorate.Similarly, with functional constituencies (FCs) used to elect LegCo members, therewere 232,252 individual voters registered in 2020 (ignoring the super-seats), but thereforms will likely eliminate the vote for around 38,000 individuals. Corporate votingis to replace the lost EC and FC individual votes. But a long-standing problem withcorporate voting is the ease by which a single individual can enjoy multiple votes byvirtue of his or her control of multiple corporations. The three-year operation rule onlyaddresses possible abuse from creating new entities to gain more votes; pre-existingcorporations and bodies can still be used to pack subsectors and constituencies. If- 4 -the government is to have “measures against acts of manipulating or underminingelection”, it needs to take steps to prevent the potential abuses and unfairness ofcorporate voting.16)Annex I (n 2) [9]; Annex II (n 3) [6].The EC will now elect 40 of the 90 LegCo members. This is a significant changeas the existing LegCo has only 70 members, half returned by geographicalconstituencies (GCs) and half by FCs. After the reform, FCs will return 30 membersand the GCs only 20 members, representing only 22 per cent of all seats. This is thesmallest proportion of directly elected legislators in LegCo since such members wereintroduced in 1991, when their proportion was 30 per cent.17)Simon Young, “TheMeaning of the Right to Vote in Hong Kong” (1997) 42 McGill LJ 649, 667 (Table4). Hence, the reforms are criticised for being retrogressive or, euphemistically, areboot. I do not doubt that the 40 new EC seats, the reforms to FCs including thepartial elimination of individual votes, and the shrinking of the GC membership willbring more patriots and calm to LegCo. But, if this is so, why not leave the tripartiteconsensus intact for future reforms? Hopefully, the new direct amendment procedurewill facilitate more progressive changes in the future, when the NPCSC is ready torelax its grip.New nomination hurdle and powerMore troubling is a new requirement that all LegCo candidates obtain at least twoto four nominations from members of each of the five EC sectors. With the newfifth sector consisting of Hong Kong delegates to the NPC, Hong Kong membersof the National Committee of the Chinese People’s Political Conference, and HongKong members of relevant national organisations, it may be difficult for persons withcritical views, whether from the pro-democracy camp or otherwise, to satisfy thisrequirement. If the vetting committee will be closely monitoring oath complianceand national security concerns, this additional nomination requirement seems to beoverkill. Once the Public Offices (Candidacy and Taking Up Offices) (MiscellaneousAmendments) Bill 20201 is passed, there will also be a new mechanism to disqualifylegislators who have gone astray on their oath.In my view, this new nomination requirement could foreseeably amount to anunreasonable restriction on the right to stand for election in some cases. Goodpotential candidates may also be discouraged from entering politics given theadditional hurdles involved. I also fear more corruption will creep into the systemonce EC members, who are unremunerated, have this additional power ofnomination.Stairway to universal suffrage?Finally, are we any closer to universal suffrage? I can see how the remaking of theEC can lend confidence to going ahead with another CE universal suffrage proposal,albeit similar to the 2015 one, that evolves the EC into a nominating committee forCE candidates. With all the new prophylactic safeguards in place, maybe a lower- 5 -threshold for nomination, something less than 50 per cent, will be acceptable nexttime around.As for LegCo universal suffrage, it is not apparent how a practical system of directelections will evolve or develop. Beijing may want to retain the EC and FCs asnominating bodies, but that would still entail a rather long and complicated ballotpaper for the 4.5 million electors to cope with in the voting booth.References• See Improving Electoral System (Consolidated Amendments) Bill 2021,gazetted on 13 April 2021.• Simon NM Young and Richard Cullen, Electing Hong Kong’s Chief Executive(HKU Press, 2010) ch 2.• See Annex I Method for the Selection of the Chief Executive of the Hong KongSpecial Administrative Region, as amended at the 26th meeting of the StandingCommittee of the 13th NPC on 30 March 2021.• See Christine Loh and Civic Exchange (eds), Functional Constituencies: AUnique Feature of the Hong Kong Legislative Council (HKU Press, 2006).• See Annex II Method for the Formation of the Legislative Council of the HongKong Special Administrative Region and Its Voting Procedures, amended at the26th meeting of the Standing Committee of the 13th NPC on 30 March 2021.• Deng Xiaoping, “One Country, Two Systems”, 22-23 June 1984, reprinted inChina Daily, 19 February 2004.• Michael Ignatieff, Fire and Ashes: Success and Failure in Politics (Harvard UP,2013) 101-2.• LegCo Secretariat, “Legislative Council in figures (as at 2002.08.27)”,“Legislative Council in figures (as at 2021.03.05)”.• Grégoire Webber, “Loyal Opposition and the Political Constitution” (2017) 37OJLS 357, 372.• Interpretation by the Standing Committee of the National People’s CongressRegarding Annex I (7) and Annex II (III) to the Basic Law of the Hong KongSpecial Administrative Region of the People’s Republic of China, adopted at the8th Meeting of the Standing Committee of the 10th NPC on 6 April 2004.• Simon NM Young, “Rethinking the Process of Political Reform in HongKong” (2015) 45 HKLJ 381, 384.• Leonid Sinitsin v Belarus (1047/2002), UN Doc CCPR/C/88/D/1047/2002 (16January 2007).• ibid [7].• Simon Young, “How Hong Kong’s Basic Law can serve the interests of allChina”, South China Morning Post, 27 June 2017.• See Changhao Wei & Taige Hu, “Legislation Analysis: NPC StandingCommittee Approves Overhaul of Hong Kong’s Electoral System”, NPCObserver, 31 March 2021.• Annex I (n 2) [9]; Annex II (n 3) [6].• Simon Young, “The Meaning of the Right to Vote in Hong Kong” (1997) 42McGill LJ 649, 667 (Table 4).- 6 -- 7 -

Political System Transformation in Hong Kong

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Political System Transformation in Hong Kong

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